The Ninth Circuit Court of Appeals issued an important ruling last week that, among other things, gives hundreds of our clients in San Diego the chance to vacate their convictions for unauthorized entry into the United States. In this post, we’ll break down what it means for The Bail Project, our clients, and our partners in San Diego.
What happened? Thousands of people convicted of unauthorized entry into the United States may now have those convictions tossed. This is because the Ninth Circuit Court of Appeals agreed with defense attorneys that U.S. prosecutors were charging migrants under the wrong part of 8 U.S.C. § 1325, which is the part of immigration law that makes it a misdemeanor to cross the border without legal authorization, and a felony to do it more than once.
Who is affected by the ruling? Immigrants who had been prosecuted in San Diego since July 2018 under 8 U.S.C. § 1325(a)(2), as part of the Trump administration’s expansion of “Operation Streamline,” a federal program meant to speed up mass criminal prosecutions of immigrants. Operation Streamline has been in effect in other border regions as far back as 2005, but it expanded last year and was at the heart of the government’s rationale for separating families. Many of the immigrants affected by the San Diego decision have likely already been deported because immigration cases are handled by ICE, separate from criminal entry cases prosecuted by U.S. Attorneys with the Department of Justice. But now, if some of those people convicted of illegal entry and deported from the U.S. try to re-enter in the future, they will at least be able to start off without an illegal entry conviction on their record.
Why does it matter whether a person’s conviction for illegal entry is overturned? For immigrants facing the possibility of deportation, having any criminal conviction on your record makes it more likely an immigration judge will decide to deport you. It also means that if you try to enter the country again after being deported, you’ll be charged with felony re-entry, which carries a maximum sentence of two years in prison (a first time illegal entry charge carries a maximum sentence of just six months). And in a larger sense, the ruling puts a wrench into the machinery of migrant prosecutions and the federal government’s attempts to “streamline” convictions without providing each person with the presumption of innocence or benefits of due process.
Where does The Bail Project fit into all this? The winning appeal was first lodged by lawyers with the Federal Defenders of San Diego, our main partners in the city. The Defenders enlisted the help of The Bail Project in August 2018, after they began requesting bond for immigrants charged under Section 1325. For about two months, The Bail Project bonded out 700 people—virtually every immigrant being prosecuted for illegal entry in San Diego. After getting bonded out, immigrants were transferred to ICE custody, where their immigration proceedings would begin. Soon after our arrival, however, the federal court responded to the fact that we were bonding out every person charged with illegal entry by changing the procedure so that immigrants on bond would be released to the public instead of ICE custody. This made the bonds higher and conditions of release stricter, limiting the number of people The Bail Project could bond out of jail for illegal entry cases.
Why does The Bail Project devote resources to disrupting Operation Streamline and the criminalization of border-crossing? In the words of Patrick Sullivan, our Site Manager in San Diego: “These people whose convictions were vacated never had the opportunity to have the presumption of innocence. They were jammed through a process that is designed to get people to plead guilty as fast as possible.” The Bail Project works to restore the presumption of innocence for all people who have merely been charged with a crime. Operation Streamline is designed to coerce guilty pleas with ruthless efficiency, and it is rooted in an explicitly white supremacist vision of America. We will keep fighting until it is dismantled!